Limitation rules governing misattribution of artworks: a New York perspective
August 3, 2023 – International Bar AssociationWe often hear in the news about paintings whose attribution has changed as a result of new information or renewed scholarship with respect to an artist’s work. An artwork’s attribution may even change multiple times in the span of decades – with the attribution going back and forth. We saw this recently with a painting at Berlin’s Gemäldegalerie, entitled Landscape with Arched Bridge, which had been acquired by the museum as an authentic Rembrandt in 1924. In the 1980s, the painting was reattributed to Rembrandt’s student, Govert Flinck. The painting remained credited to Rembrandt’s studio for 30 years. In 2022, the painting was reattributed again – this time, with the attribution reverting to Rembrandt himself.[1]
In the case of Landscape with Arched Bridge, the artwork reverted to its original attribution, and with it, the painting’s value as an authentic Rembrandt painting. But this is not always the case. Moreover, it often takes years before the attribution of a painting is called into question. Where does this leave the collector, who may have purchased an ‘authentic’ painting years ago, and who now has questions about the artwork’s attribution? In New York, where an artwork is discovered to be inauthentic or otherwise misattributed, claims based on breach of warranty, mistake and fraud may be available to the buyer, among other causes of action. But if the misattribution is not discovered until decades later, the claim may be barred by the statute of limitations.
Pursuant to New York law, an action for breach of warranty – whether express or implied – must be commenced within four years after the cause of action has accrued.[2] In general, accrual is measured from the date of the breach, which occurs when ‘tender of delivery is made’, regardless of a lack of knowledge of the breach.[3] New York’s Uniform Commercial Code (‘UCC’) provides an exception, where a warranty ‘explicitly extends to future performance’ and ‘discovery of the breach must await the time of such performance’.[4] Under those circumstances, the cause of action will accrue when the breach is or should have been discovered.[5] The UCC permits the parties to agree to reduce the limitation period to less than four years, as long as the limitation period is at least one year. The parties may not extend the period beyond four years.[6]
If a buyer does not discover that the artwork is misattributed until after the four-year statute of limitations has expired, a buyer may also bring a claim on the grounds of mistake. In the case of mutual mistake, both parties must be mistaken with respect to a material assumption on which the contract was made – in this case, the attribution of the artwork. If, however, the seller is aware of the mistake or has reason to know of it, a buyer may have a claim for unilateral mistake. Claims for mistake are governed by a six-year statute of limitations.[7] Since the cause of action occurs at the time of the breach (ie, at the time that the delivery was made), the buyer must act quickly to ensure that the artwork is authentic.
A buyer may also be able to bring an action for fraud on the part of the seller. In New York, where the seller commits a fraud by selling an artwork it knows to be misattributed, the statute of limitations is either six years from the date of the fraud (which in this case would be the date of purchase of the artwork), or two years from the date the fraud was discovered or with reasonable diligence could have been discovered. Given the difficulty in proving a fraud claim, and the prevalence of misattribution in the art world, collectors should take affirmative steps before purchasing an artwork to confirm the work’s attribution and authenticity.
[1] Tessa Solomon, A Contested Landscape Painting in Berlin Is Deemed an Authentic Rembrandt, ARTnews, (1 April 2022), https://www.artnews.com/art-news/news/gemaldegalerie-rembrandt-authentic-attribution-1234623822/.
[2] See NY UCC s2-725(1).
[3] See NY UCC s2-725(2).
[4] Id.
[5] Id.
[6] NY UCC s2-725(1).
[7] See NY CPLR s213(6).
This article first appeared on the website of the Art, Cultural Institutions and Heritage Law Committee of the Legal Practice Division of the International Bar Association, and is reproduced by kind permission of the International Bar Association, London, UK. © International Bar Association.